S.F. Jury Begins Deliberations in Rothenberg’s Trial

Jurors began deliberating Thursday in a case that could send the man who gained infamy for setting his son on fire in a Buena Park motel room more than 20 years ago to prison for life under the state’s three-strikes law.

Charles Rothenberg -- who legally changed his name to Charley Charles in 1998 -- took the stand in his own defense in the weapons case in San Francisco Superior Court, saying that he so feared violence from vigilantes who labeled him a “baby burner” that he had no choice but to illegally possess a loaded gun.

The “necessity” defense is Rothenberg’s only chance at acquittal on felony charges of being a convicted felon in possession of a gun and ammunition, which he admitted purchasing. His distant criminal past was laid bare for jurors in the trial in an attempt by Deputy Public Defender Gabriel Bassan to show that his client was permanently shadowed by his pariah status.

“How do you defend a man who is universally loathed, despised, hated?” Bassan asked during his closing argument. The only way, he said, was to unveil his past acts so jurors would understand that he had no “viable legal alternative” to protect himself except to buy the gun.

“Both common sense and justice show you that anyone can violate a lesser [law] to stave off a greater evil. That’s what happened here,” Bassan said.

As Bassan spoke of constant “inarticulable” threats that hung over his client’s head since the 1983 arson and attempted murder of 6-year-old David, he provided details on just one incident. That was in 1997, when Rothenberg said he was shot at on a San Francisco street by a stranger who recognized him as the man who had burned his son. He said police ignored him when he tried to report the incident.

Bassan also said that Rothenberg had been in protective custody for nearly his entire seven-year incarceration, and had been on 24-hour guard by parole agents for three years. During that time, testimony revealed, agents who were concerned with potential vigilantes often “moved away” from him in restaurants for their own safety.

But Assistant Dist. Atty. Cheryl Matthews argued that the defense did not come close to meeting a legal test that would entitle Rothenberg, now 64, to the unusual defense.

To acquit, jurors must determine that a preponderance of evidence shows that Rothenberg was staving off a “significant and imminent evil” -- namely a serious threat to his safety -- by possessing the gun.

They also must determine that he had no reasonable legal means of protecting himself; that the societal harm he caused as a felon with a gun was far outweighed by the harm he averted; that the threat to him was objectively real; and that he did not contribute to the “emergency” that compelled him to break the law.

Yet on the date of his arrest, June 14, 2001 -- about three years after he had purchased the gun -- Rothenberg faced no specific danger at all, he admitted on the stand.

“He says he believes that because of the heinous nature of his crime in 1983, he’s looking over his shoulder all the time,” Matthews said. “But what the defendant did not do on that stand is give you one single incident of how he was in imminent danger on June 14, 2001.”

Matthews also told jurors that Rothenberg’s admission on the stand to seven prior felony convictions, as well as his admission to perjury on a Department of Motor Vehicles application on which he attested to a false birth date, unmasked him as a liar who was using the son he badly disfigured to evade the law.

“He is exploiting his son,” she said. “He is the worst of wolves wrapping himself in lamb’s clothing.”

Visibly nervous, the bald, gray Rothenberg sniffled audibly and spoke haltingly when, while testifying Wednesday, he described giving David a sleeping pill, then dousing his bed in kerosene, lighting it and fleeing in 1983.

But his demeanor shifted markedly on cross-examination, when he angrily accused Matthews of “verbally manipulating” him and claimed repeatedly not to remember lying about his birth date on forms and to police.

Dist. Atty. Kamala Harris is seeking a conviction of 25 years to life under the three-strikes law, unusual in liberal San Francisco for a nonviolent third offense. But Rothenberg’s extensive criminal record and the nature of his past crimes warrants it, she said.

Jurors, however, were kept in the dark about the gravity of the potential sentence in his weapons trial, as well as about multiple charges of fraud and forgery on which Rothenberg still awaits trial.